Tumbwe, former minister with Potter’s House, claims sex was consensual; 2 other women say defendant didn’t reveal his status and gave them HIV

Nathaniel Tumbwe is on trial in Dallas for aggravated assault with a deadly weapon. The weapon is his penis and his bodily fluids are the bullets because he has AIDS, herpes and genital warts.

According to testimony in Tumbwe’s criminal trial, Tumbwe made repeated advances to Carolyn Hudson, which she refused. In October 2008, she reported to police that he raped her in her house. She said she invited him to her home twice to discuss religion and on that second visit he raped her.

Weeks later she learned he had AIDS.

The defense claimed that Hudson simply regrets having had a relationship with Tumbwe.

Hudson is a receptionist at Potters House, a megachurch in Southwest Dallas. Tumbwe refers to himself as a reverend who was affiliated with the church at the time.

Hudson has tested negative for HIV. Two other women who contracted the virus after unprotected sex with Tumbwe will testify at the punishment phase of the trial if he is convicted.

Ken Upton, staff attorney for Lambda Legal in Dallas, said that calling the penis a weapon is unusual.

He said that Lambda Legal has filed briefs in cases where police charged someone with assault when a person with HIV that was being arrested spit on the officer. Since that is not a method of transmission and spitting is not normally seen as assault, the courts dismissed the charges.

In a 2009 case in Michigan, a man with HIV arrested for assault was also charged with bioterrorism after biting his victim. Lambda Legal filed a brief in the matter.

“This charge leads to public misunderstanding of how HIV is transmitted, contributes to stigmatizing people with HIV and undermines important public health goals,” Lambda Legal attorneys wrote in their brief.
In June 2010, the bioterrorism charge was dismissed.

But Upton warned about having unprotected sex or not revealing one’s HIV status to a sexual partner.

“Knowingly having unprotected, nonconsensual sex puts it in a different category,” Upton said.

He said in Texas it would at least be a good argument for battery.

Why Dallas prosecutors would go for the assault with a deadly weapon charge, however, when rape has severe penalties, Upton said he could only speculate. He thought they might have added the charge in order to get a plea bargain. Once the case went to trail, he suggested it might have been to further bias the jury against the defendant or simply add charges.

Jamille Bradfield is the public information officer for the Dallas County district attorney’s office. She said she could not comment on the case because the trial is ongoing.

The charge has worked in North Texas before.

In 2009, a Frisco man was convicted of six counts of aggravated assault with a deadly weapon — his bodily fluids — because he was HIV positive. Ten women who seroconverted after having sex with him testified for the prosecution. The sex was apparently consensual. No rape was charged.

That case was the first in which DNA testing showed that the defendant was the source of the infection. He was sentenced to 45 years in prison.

In March, a Houston man was charged with having unprotected sex with a minor. The charges were upgraded to aggravated sexual assault when police learned that he was aware of his HIV positive status.

Enhancing the charges when HIV is involved is becoming more common according to The Center for HIV Law & Policy. They list about 60 current or recent cases across the country. Charges range from spitting and knowingly spreading infectious disease to assault with intent to kill.

The cases involving sex, rather than spitting or biting, all appear to involve heterosexuals.

The organization calls penalties for crimes involving persons with HIV “draconian,” with up to 25 years in prison even when no transmission occurred.

In the Tumbwe case, there was apparently no infection in the case of the rape victim. Hudson has not tested positive for HIV but is being told that she needs to retest once a year for 10 years.

Bret Camp, associate executive director for health and medical services at Resource Center Dallas, said that was ridiculous and unnecessary.

“Technology has advanced,” Camp said. “HIV RNA testing is now available at Nelson Tebedo Clinic through a partnership with Dallas County. It detects HIV in seven to 10 days after an exposure.”

He said for peace of mind, he’d recommend a follow-up at 60 days, but called even that medically unnecessary. He said he knows of no cases where someone suddenly tested positive years after exposure.

David Clohessy, national director of the Survivors Network of those Abused by Priests, has been following the Tumbwe trial and said the case is of particular interest because of the trust people place in other people involved in their church.

He said that prosecuting crimes involving churches are particularly difficult.

“Often people associated with a church are reluctant to speak up,” Clohessy said. “By cooperating with law enforcement, churchgoers are strengthening their congregations and making them healthier communities.”

And many churches are reluctant to discuss HIV prevention. By going public, Hudson may have helped open the discussion of several topics at the church including HIV testing and revealing status to partners as well as sexual abuse by church elders.

At press time, the trial was still in progress. Tumbwe faces 20 years in prison if convicted.

This article appeared in the Dallas Voice print edition July 16, 2010.